In re L.B.

In re L.B.  (98-215); 169 Vt. 552; 725 A.2d 935

[Filed 3-Feb-1999]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 98-215

                             JANUARY TERM, 1998


                                     }	APPEALED FROM:
                                     }
                                     }
     In re:  L.B.	             }	Franklin Family Court
                                     }	
                                     }
                                     }	DOCKET NO. 12-01-98 FrJv



       In the above-entitled cause, the Clerk will enter:

       Mother appeals an order of the family court granting guardianship of
  her son L.B. to L.B.'s  maternal grandparent.  We affirm in part and
  reverse in part.

       On January 23, 1998, a delinquency petition was filed alleging that
  L.B. had assaulted his  mother by throwing a Sega paddle at her.  In a
  March 19, 1998 order, the family court (1) found  that L.B. threw a Sega
  paddle at his mother, injuring her; (2) concluded that L.B. was a 
  delinquent child; (3) ordered temporary custody to the Department of Social
  and Rehabilitative  Services (SRS); and (4) ordered a disposition report. 
  The disposition report recommended that  L.B. be placed with his
  grandparents.  In an April 29, 1998 order the court (1) noted that L.B. 
  had been adjudged to be delinquent; (2) ordered that L.B. be placed under
  protective supervision  of SRS; (3) ordered that guardianship go to L.B.'s
  maternal grandparent (with residual rights and  reasonable visitation to
  mother); and (4) made the order effective until L.B. reached 18 years of 
  age.

       Mother argues on appeal that the family court lacked jurisdiction to
  transfer guardianship  to L.B.'s grandparent in the context of the
  delinquency proceeding and that the court failed to  make required findings
  that the grandparent was qualified to receive and care for L.B.   SRS 
  concedes that 33 V.S.A. § 5529 (pertaining to disposition of delinquent
  child) does not contain  a provision authorizing the court to transfer
  custody in connection with an adjudication of  delinquency.  SRS argues,
  however, that the family court has broad authority to establish terms  and
  conditions of juvenile probation, and that this includes the authority to
  transfer custody of the  juvenile to an appropriate person.

       If  a child is found in need of care and supervision (CHINS), a court
  has three options under  33 V.S.A. § 5528: it may (1) permit the child to
  remain with the current caregiver, (2) place a  child under protective
  supervision, or (3) transfer legal custody to SRS, a foster group home, a 
  qualified individual, or a child placing agency.  If a child is found to be
  delinquent, the court also  has three options under 33 V.S.A. § 5529: it
  may (1) place the child under protective supervision,  (2) place the child
  on probation, or (3) transfer custody to SRS.  Given that the Legislature 
  specifically included the option of transferring custody to a qualified
  individual in the context of  a CHINS proceeding, it could have easily
  included this option in the section pertaining to  delinquency proceedings
  if that were its intent.  It did not, however, and we have no basis upon 
  which to infer such intent.




       Under 33 V.S.A § 5529(a)(1) the family court may in the context of a
  delinquency  proceeding place a child under protective supervision, subject
  to conditions, and thus we allow  that portion of the order stand.  The
  court was without authority, however, to transfer custody in  this context.

       Given our disposition we need not reach the second issue raised by
  mother on appeal.

       Order of protective custody affirmed.  Reversed and remanded in all
  other respects.



FOR THE COURT:



_______________________________________
Jeffrey L. Amestoy, Chief Justice

_______________________________________
John A. Dooley, Associate Justice

_______________________________________
James L. Morse, Associate Justice

_______________________________________
Denise R. Johnson, Associate Justice

_______________________________________
Marilyn S. Skoglund, Associate Justice